Of all of the talking points the Right might have hustled up about Sotomayor, this one is the least intelligent. She graduated Princeton summa cum laude, and then went on to Yale Law School, where she was an editor of the Yale law journal. Not intelligent?

One other thing before I move on to the next point — yesterday I quoted from a Washington Post profile of Sotomayor in which a number of her colleagues (and, unlike Jeffrey Rosen’s sources, these people gave their names) called the SCOTUS nominee “brilliant.” Today at the same URL there is an entirely different story about Sotomayor. The “brilliant” quotes are gone; the new article emphasizes Sotomayor’s ethnicity rather than her intellect. Make of that what you will.

She’s temperamental, or difficult, or even bullying

Some also call her tough and exacting. In other words, traits that would be an asset to a man are a liability to Sotomayor. And I’ve yet to see a concrete example of her “temperamental” behavior.

Obama chose empathy over intelligence

As John Yoo (John Yoo, people!) put it, “President Obama’s nomination of Judge Sonia Sotomayor shows that empathy has won out over excellence in the White House.”

There’s a common fallacy — much beloved of people who themselves have second-rate minds — that people are either logical and rational or emotional and empathetic. To be logical requires squelching emotion — think Mr. Spock — because emotions and rational thinking cannot co-exist in the same head.

This is nonsense. Abraham Lincoln, for example, was among our most intelligent presidents, yet he also was a man of deep compassion. Think also of Albert Schweitzer. I don’t know that Sonia Sotomayor belongs in the Lincoln-Schweitzer category; such people are rare. But a definition of true genius may be an ability to understand the same thing on several levels at once.

I think it’s true that there are some kinds of passions that override rational thinking. Greed is chief among these; also fear, or any impulse to protect and defend one’s ego and self-identity. But genuine compassion and empathy are very far removed from self-destructive passions.

There’s a theory of emotional intelligence that enjoys considerable support in the social sciences. As I understand it, emotional intelligence is the ability to identify, understand and manage one’s own emotions and “read” and relate to other people’s emotions as part of navigating social networks. Emotional intelligence is part of a complex of intelligences that enable one to perceive and comprehend the world.

Not everyone accepts “EI” as an “intelligence,” but I have known many people who were bright enough at book-learnin’ but who were stymied by their own and other peoples’ emotions. So I think there is something to it. The point is that there are many different kinds of intelligence, and IMO the most genuinely intelligent people are those who integrate diverse intelligences.

Huther’s basic argument is that brains change physically depending on how we use them, and he makes an argument based on brain physiology that the capacity of the brain develops most fully when emotion and intellect are balanced. This is from a review:

By following the usual human path of egocentricity – seeing oneself as the center of the world and acting accordingly – one embeds a fixed pattern of repetitive neuronal connectivity. The harder path of self-development, which leads to a more comprehensive, complex and more highly networked brain, consists in developing qualities that go beyond self-centeredness. Sensibleness, uprightness, humility, prudence, truthfulness, reliability, empathy, and courtesy; qualities such these cannot be developed in isolation. They come as part of a matrix of social feelings that involve connectedness and solidarity that transcend our usual self-centeredness. In the end, says Huther, a person who wishes to use his or her brain in the most comprehensive manner must also learn to love.

In my experience, people who pride themselves in being “logical” rather than “emotional” inevitably are a lot more emotional and a lot less logical than they want to admit. They just aren’t good at being honest with themselves about themselves. (John Yoo is, I suspect, such a person.) Which takes us to the next dig at Sotomayor —

She’s an affirmative action hire, chosen because of her ethnicity and not her ability.

This is essentially what George Will says today, if you read between the lines. To Will, the function of “identity hires” like Thurgood Marshall and Sonia Sotomayor is to “balance” the court by showing favoritism to women and minorities over white men. Will writes,

And like conventional liberals, she embraces identity politics, including the idea of categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is, and members of a particular category can be represented — understood, empathized with — only by persons of the same identity.

Will presents no credible evidence whatsoever that Sotomayor believes this. He gives the much-maligned quote –“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” But in this quote Sotomayor was not saying that “members of a particular category can be represented — understood, empathized with — only by persons of the same identity.” She’s saying that people with “a richness of experience” have a broader and more inclusive understanding of people than a white man “who hasn’t lived that life.” In other words, it’s not about ethnicity, but experience.

The irony, of course, is that white men usually have their own identity blindnesses and are just as guilty of identity favoritism as the people they accuse of identity favoritism. It’s just that they think of themselves as the default norm; therefore, their biases are not biases.

Anyway, turning to Sotomayor, what’s interesting about accusations of identity politics is that they implicitly assume that whiteness (or maleness) is some sort of neutral baseline. I call it the “invisible baseline” fallacy – and it’s certainly not a novel concept. The idea is that people forget that whiteness is itself an ethnicity – and one that shapes and colors perceptions (and that enjoys entrenched benefits). Instead, whiteness blends into the background and becomes part of an “invisible” baseline that is conceptualized as “normal.”

Will doesn’t use the word “diversity,” but there is no doubt a court made up of justices with diverse backgrounds will have a broader perspective, and a deeper collective intelligence, than one made up of privileged white males.

Share this:

33 Comments

Interesting that John Yoo should draw a distinction between “empathy” and “excellence”, as if the most “excellent” Justice would be one entirely free of empathy.

I thought people entirely free of empathy were called sociopaths.

Even if you believed in an ideal where trial judges were essentially law-reading robots, it’s absurd to expect that of Supreme Court Justices, who are charged with deciding the kind of cases that would make a law-reading robot blow its logic circuits faster than talking to Star Trek’s Captain Kirk.

Once again John Yoo demonstrates just how deeply, thoroughly, and profoundly he does NOT understand how our legal system is supposed to work.

…one subsidiary theme swirling in the backwater eddies is that she may not be sufficiently physically able to perform her duties because of her type I diabetes. This little jab fired me up more that most of the others (which are pretty run-of-the-mill stuff) because I am the parent of a type I diabetic teenager. If you want to have real cause for concern at the prospect of running across me out in the parking lot, just tell my kid that he can’t do something just because he is a diabetic…

I’d like also to remark on the diabetes angle. ( I am one, myself). I have run into other concern trolls speaking about this and wondering if Sotomayor is capable of making good decisions because of fluctuating blood sugar levels. Of course, in the long run, this thinking means that anyone with any sort of health condition will be denied employment! Just check Sotomayor’s record if there is a concern that her health is making her judgements false. Sheesh.

And Scalia would not be seen as bullying? You’re kidding, right? It’s difficult to watch those with lesser minds (of which I am one) calling someone with a clear academic pedigree as being ‘not intelligent’. They would never do that to a white, male nominee, even from Obama. Obama clearly picked her in part because of her ethnicity in the same manner that Bush Uno picked Thomas, and the court will be better off because of it. How many Italians are on the court? To think that you can somehow choose people because of their mind and then divorce that in some way from their circumstances is, well, stupid. To reflect the demographics of the United States we should up the number of justices to 11 (nine is not in the Constitution), have six be women, with two each being African American and Hispanic. I would trust this make-up more than the white male dominated court we have seen so far.

In his selection criteria Obama list many variables intelligence, capability, experience, grounding and also empathy. An intelligent person understands that the law is not always black and white and some understanding of the context of the event is important. Republican’s have invented the idea of “activist judges” in a light that it is activist when the other guy does it. Law is not just guilty and innocent or right and wrong.. it is interpretation within the context of a situation. Empathy is required to understand context. Conservatives see empathy in a limited definition meaning bleeding heart.

Maha says: I’m surprised no one has brought up menopause. She’s about the right age.

This reminds me of a sentence (I am not sure of the exact words) from Marilyn French’s novel “A Women’s Room”: “What are they worried will happen if they let women into the faculty? They are worried about blood. Drip, drip drip, down the hallways. Ribbons of menstrual blood. It’s a mess to clean up.”

In the early days, the only people Greenwald banned were otherwise intelligent ‘weirdo’ commenters, who couldn’t grasp that his was a civil liberties themed website, frequented by lawyer / debater types who enjoyed playing the one-upmanship debate game. The weirdo would get one-upped, challenged, touche’d… , and would then completely ignore the ‘offending’ comment which had intrigued everybody else. After a few dozen times it got pretty damned annoying. The commenter in question appeared to have a complete inability to think outside of their little box, but was compelled to preach their gospel anyways. Yeah, I know. I’m describing a common wingnut. But I think the cause of this ‘affliction’ is a low moral reasoning ability that has impacting their ability to think clearly in other areas. They’re not psychopaths, but they’re also not autistics either – I think something in between.

Nobody’s mentioned that she’s from Bronx, NYC.
That means she probably curses like a $10-a-trick hooker who’s been handed a counterfeit bill, and that she can use a shiv to carve up anyone who disagrees with her like a Thanksgiving turkey. It’ll be in Krauthammer’s next column.
And Cheney’s daughter will be bought in as a SCOTUS expert on MTP this coming Sunday, where she’ll blow the cover on the nominee as being the sister of a Shark. And how her Daddy says only Jet’s have any virtue, and how all Shark’s should be waterboarded – which is still not torture, it’s giving these people a bath.
When Sotomayor is confirmed, Obama should invite Mike Huckabee to sing “Maria” (which is the name Huck the Shmuck gave her in a column. Hey, aren’t all Hispanic girls from Bronx named Maria?).
I’m still waiting for the right to blow the dust off of some of the jokes from “Chico and The Man.”

Well, I caught a few minutes of hannity insanity yesterday,who had his panties in the normal twisted state(one wonders how he doesn’t chafe walking around likr that everyday)..He had on a lawyer(I missed the name) and in the course of the conversation all the points were covered…First the notion she is dumb…but then in the same conversation we heard how she is almost sinister because she has some hidden agenda to advance the radical liberal cause(how would she be smart enough to think of that on her own given how dumb she is?) ..Then we heard this lawyer who has been before her in court say she asked hard, fast questions which made his job tough…also she didn’t like to hear”I don’t know” as an answer to questions she asked…yet this same lawyer went so far as to say he was afraid to really speak out for fear he would someday have to go before her in court again someday(because someone so dumb would certainly not be able to separate her female emotions long enough to rule on his case without seeking revenge!).We heard how she wants to throw the constitution out , but at the same time we heard how evil she was for saying that it is a living breathing document.We heard how she thinks it is her job to “make law” yet we heard about no particular rulings she has made that indicate that.
The common thread I saw (besides the need for poor sean to seek help) was attacks on her of a personal nature rather than attacks on her work within the court.It seems to me there was plenty of time to scour her record on over a decade of opinions …surely there was something they could point to that they can claim screams judicial activism…even if they had to re- arrange the words in a sentence or two. It seems to me that rather than have a smart conversation about her Judicial record( which is boring to their key demographic) they have drudged up a circus sideshow talking about ANYTHING but her time on the bench….but to say of the 5 cases she had reviewed by the supremes 4 were overturned.And that folks is all you need to know, according to Mr.insannity , to understand why she is just to stupid to go to the high court, and is not ready for primetime, because they already rejected her legal views 4 out of 5 times.
I am grateful my ride was over at that point…but I gotta say it is just more of the same.Any thing Obama does = bad. Shy of letting bush pick the nominee this group of folks isn’t going to be happy.

If only I had been born Puerto Rican and poor in the Bronx my life would have been so much either. Thank god some of my countrymen are finally waking up to how hard it is to be white and male in America. You cannot begin to feel my pain.

Regarding judicial activism, we already have three judicial activists on the Supreme Court. The most judicially active is Antonin Scalia, followed by Clarence Thomas, and John Roberts. Of course, I am forgetting, it is only bad to be a judicial activist if you are not part of the extreme whacko rightwing of this country. Fair is fair. If they get judicial activists on the SCOTUS, we should, too. Also, I have never considered Ginsberg or Souter as judicial activists; but, Sandra Day O’Connor was the worst of the worst being a party to destroying this country by giving us George W. Bush for President. Kennedy has played some roles of judicial activism that have been detrimental to this country.

Here’s a great article from Newsweek written by someone who gives her a personal reference. It also addresses the Rosen piece pointing out that he chose to elevate anonymous sniping over firsthand acquaintances and indicates that Rosen later expressed regret over having written it. Too late Jeffrey…

It was really funny to read comments railing against the practice of printing such articles from people who actually know her. Lots of laughs there. I suppose we should seek out those who did not know her…that’s the ticket! Advice to interviewers seeking character references.

Let the detractors keep it up. They hardly look good with their campaign to squash empathy. What’s next? Legislation against compassion from doctors or the clergy? Keep it coming rightees. The faux legal erudition is mind-boggling.

My response, which also addresses several points raised by Maha was:

If she had been conservative these “questions about her temperament” would have been cast as a very desirable no-nonsense toughness.

This kind of right-wing doublespeak is incredibly transparent as is the way they are dealing with Obama’s reference to empathy as a quality valued in his nominee. How ironic this is coming from a group that bends the law almost to the breaking point when it serves their interests and speaks about the law as if it were a field bound by immutable mathematical laws without any interstices between the dictates of precedence by which a judge would necessarily draw upon his or her humanity (or lack thereof) in a decision. How strange it is that rightees are suggesting that the place for empathy or any hint of it is equivalent to rejection of the rule of law. Strange birds these folks are and even stranger that their ideal nominees hail from the crowd that shuns the legal principle of stare decisis (precedence of law) in favor or cherry picking the intent of our founding fathers as if this sort of ruse were deeply reverent philosophy. Well maybe it is…to the Heritage Foundation but not to the rest of America.

They speak in a code that is very much like I once heard from the last of a dying breed of racists in the south as they learned they had to be more clever, subtle and less overt. However, it’s really not so hard to crack that code when the ignorance and spite is there for all to see.

Sotamayor will not only be good for Latinos. She will be good for all Americans including this white male.

“–”I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” But in this quote Sotomayor was not saying that “members of a particular category can be represented — understood, empathized with — only by persons of the same identity.” She’s saying that people with “a richness of experience” have a broader and more inclusive understanding of people than a white man “who hasn’t lived that life.” In other words, it’s not about ethnicity, but experience.”

Let’s see.. I am a white male. I was in the delivery room for the birth of each. I went to birthing class and was educated & supportive of my wife for each. But I had no dietary restrictions; no morning sickness, no gestational diabetes. I slept well each night, though I know my wife suffered through the last trimester, never sleeping well, unable to find a comfortable position, standing, sitting or laying down. I never experienced labor; I know it hurt, but I never felt the pain.

Now suppose the issue before the court is women’s rights, authority over her own body, her right to choose. Let’s look at this, I delivered a few ounces of goo on a regular basis to satisfy my affectionate &/or carnal side. She delivered a baby, several times, each at great personal cost. Which of us do YOU think is more qualified to be a judge on women’s right?

” My heart is bursting with gratitude”….That tells me all I have to know about Sonia Sotomayor. She’s in touch with her heart, and she’ll serve Justice well.

And John Woo?.. How the fuck can that weather vane have the audacity to even open his mouth to question a person of decency. If I were John Woo I’d be hanging my head in shame and keeping my mouth shut

Hmmm. Does anyone know how to blanket an area with spam? What I want to do is get into one of the Oklahoma areas, where there is a catholic church. Then I want to send an order to all of the noncatholics to bring their weapons and turn them in to the priest. I want to explain that this is a pilot project for disarming the protestants and evangelicals for when the sixth catholic is appointed to the supreme court and they declare it illegal for anyone but catholics to possess weapons. Betcha burning catholic churchs will put a halt to Sotomayor’s appointment. Why OK? Well Bartcop.com is the only thing that is worth saving there.

The right wing blowback is all sulphurous wind, as these comments indicate. But I’m still bothered by one thing about Sotomayor: will she support Roe v. Wade and abortion rights? This is a very open question. Remember, the woman is a practicing Catholic (the sixth on the Court). Nobody seems to know much of anything about her abortion views.

There are plenty of Catholics around who are progressive on other issues but take a prohibitionist stand on abortion (eg. Dennis Kucinich). And if she shows sympathy to the pro-choice view, you know that the bishops will be out in force with their threats of excommunication, denial of communion, etc.

This is the elephant in the room that nobody seems to want to talk about. I worry that Obama may have just put the last nail into the coffin of nationwide legal abortion.

Someone doesn’t think she’s fit to serve because her name is hard to pronounce.

I’m surprisedly thankful this guy is not a member of Congress. It’s even funnier that his name is Krikorian which is some sort of furrin’ Amrmamainean name, I think.

If this guy has his way cops stopping people could detail them over hard-to-pronounce names….driving-whie-having-a-tongue-twisting-name. I’d better watch out, I’m a Pattillo which is phonetically Scottish and no hispanic, though often obliterated in what this wacko might call reverse discrimination.

Did all this start happening when Reagan cut funding to mental health?

to Pat Pattillo:
The question of how to pronounce Judge Sotomayor’s surname goes beyond fitness. It implicitly brings into question whether or not she is a “real” American. After all, we don’t need any foreigners on the SCOTUS. Having one as POTUS is bad enough!

I was talking to my political organizer friend about the resuscitation of Gingrich and re-emergence of Darth Cheney from his bunker and asking why we are now hearing more from these extremists (and why media has gone ga-ga over them). He remarked that the extremism of the Republican leadership has caused them all to keep this heads down…at least the ones who are going to need votes in a reelection bid.

So I pose the question of whether we might not be headed towards a period of overwhleming progressive dominance as the Republican party becomes more and more just a dirty joke. Perhaps a period of almost total capitulation during which each trampling of a conservative cause elicits only a tepid spiteful whimper.

IMHO this would not be good because it might give progressives enough rope to hang them selves (we have a fringe too). It would distill and galvanize the fringe right…send them running for their guns because of issues like gay marriage but leave enough of a leftward majority to reverse 30 years of destructive conservatism in a very short time.

If that happens then going slow, as some think Obama is might be better…slower but certain and more methodical change at a pace that approaches stealth. There will still be a far-right legacy in our court system which will take time to evolve (return to synch with advancing culture and public opinion) and change due to attrition.

I wonder…

On the Sotomayor topic there was this, for which the right will no doubt make into a big deal. She was right though there are cracks or spaces in all laws that get filled in by the judiciary. Still I sort of wish she hadn’t said it…

Someone doesn’t think [Sotomayor]’s fit to serve because her name is hard to pronounce…. It’s even funnier that his name is Krikorian….

A wag over on Wonkette responded to Krikorian’s idiocy by saying, “Bad news for John Boner.”

Part of Krikorian’s rant involved the Latina/Latino distinction. He argued something to the effect that English (clearly to him the only language anyone should speak) did away with gender distinctions “a thousand years ago.” A fair number of Wonkette commenters retorted with phrases involving “blonde” and “dominatrix.” (Well, you know… Wonkette.)

I haven’t seen a single anti-Sotomayor piece that isn’t ripe and stinking with stupidity. Of course, that’s not a recommendation of her, but it is adding up to a thorough condemnation of the Right. Jeebs, they even fail basic literacy.

As to the “makes policy” argument, there are always going to be new cases that don’t fit into the neat boxes created by law. Take for example something really simple like software shrink wrap license agreements. There are two lines of cases running. One follows ProCD v. Zeidenberg and says they’re enforcable; the other follows Klocek v. Gateway and says they aren’t. There are good arguments on both sides, all solidly grounded in established contract law. InformationWeek said (Feb 2007) that these were “an epidemic of lawsuits waiting to happen.”

At some point, a few of these lawsuits are going to get to a US Court of Appeals, and precident (a.k.a., policy) will emerge. The alternative is to push Every Single One of these new situations into Congress and get specific laws written to cover that specific situation … at which point somebody will come up with another gray area and we’re right back into court.

If you require everything to be legislated, and give no flexibility to the courts, you are pursuing a big-government program. Memo to righties: you are against big government, remember?

The principle of stare decisis is supposed to bring stability and predictability to the legal system. Memo to righties: this is a good thing. Appellate courts, up to and including SCOTUS, are where precident is set in the US system. Memo to righties: this is the way it’s worked and worked well for hundreds of years; get over it.

Her statement shouldn’t have been made, because it allows stupid people to cite it. But it is not controversial in the slightest among people who know what they are talking about.

[Krikorian] argued something to the effect that English … did away with gender distinctions “a thousand years ago.”

Fabulous. Next time somebody asks me where he/she can find one of my male/female coworkers, I guess I can tell him/her, “It’s in the conference room.” That will make me very popular around the office, I think.